The Cuban Five — victims of national security justice
By
Saul Landau
In
1953, a man I knew got busted for masturbating at a public urinal. A
cop had hidden in the ceiling grate above him “to find perverts.”
The lawyer, a friend of our family, charged him $5,000. “I gave
$500 to the cop,” the lawyer explained, “bought the judge a
present and paid two witnesses $250 each to testify that he was
wearing a complicated truss and that’s what made it seem like an
unnaturally long time for him to get adjusted after he went wee wee,”
the defense lawyer explained to my father.
I
have no idea if his behavior typified that era or remains a standard
today. Comedian Lenny Bruce’s quipped: “In the Hall of Justice
the only justice is in the hall,” where the payoffs occurred.
Indeed, the poor, not the middle class and certainly not the rich,
inhabit U.S. jails and prisons. Most Americans understand that equal
justice for all means police will arrest a rich or poor man sleeping
under the bridge or stealing a loaf of bread.
Those
who can afford expensive lawyers usually get away with murder. Take
the cases of Claus von Bulow, who overdosed his rich wife with
insulin, or O. J. Simpson, a case where the Los Angeles police
actually framed the right guy for wife and friend killing.
By
Saul Landau Read Spanish Version
In
1953, a man I knew got busted for masturbating at a public urinal. A
cop had hidden in the ceiling grate above him “to find perverts.”
The lawyer, a friend of our family, charged him $5,000. “I gave
$500 to the cop,” the lawyer explained, “bought the judge a
present and paid two witnesses $250 each to testify that he was
wearing a complicated truss and that’s what made it seem like an
unnaturally long time for him to get adjusted after he went wee wee,”
the defense lawyer explained to my father.
I
have no idea if his behavior typified that era or remains a standard
today. Comedian Lenny Bruce’s quipped: “In the Hall of Justice
the only justice is in the hall,” where the payoffs occurred.
Indeed, the poor, not the middle class and certainly not the rich,
inhabit U.S. jails and prisons. Most Americans understand that equal
justice for all means police will arrest a rich or poor man sleeping
under the bridge or stealing a loaf of bread.
Those
who can afford expensive lawyers usually get away with murder. Take
the cases of Claus von Bulow, who overdosed his rich wife with
insulin, or O. J. Simpson, a case where the Los Angeles police
actually framed the right guy for wife and friend killing. The
accused paid millions of dollars to top lawyers who skillfully placed
seeds of doubt in the jurors’ minds. Public defenders often lack
the resources, time and will to build minimum defenses for poor
clients.
In
some case, however, even the best defenders can’t buy justice,
especially when
the government cites “national security.”
The
Cuban Five case became victims of that phrase that usually means the
government will not tell the public what it is doing or why. It reeks
with imperial arrogance and often with vengeance as well.
The
FBI busted five men (Gerardo Hernández, Antonio Guerrero,
Ramón Labañino, Fernando Gonzáles, and René
Gonzáles) in 1998 and a Miami jury convicted them in 2001 for
conspiracy to commit murder, conspiracy to commit espionage and other
serious offenses. The case illustrated the U.S. standard of justice
for third world nations that disobey its dictates.
Since
Washington had failed to punish Cuba adequately for its near half
century of disobedience, the opportunity presented by the Cuban Five
fell like a serendipitous apple onto the vengeful ground of the
national security elite, the group that wages war and regularly
infringes on citizens’ rights in order to “protect” the public.
This bureaucratic posse inside executive agencies looks at the public
as an obstacle to its imperial ambitions, to the notion of
accountability as an irritant, the proverbial pimple on a sewer rat’s
butt. The following story illustrates.
In
2004, John Negroponte, then UN Ambassador en route to becoming
Ambassador to Iraq and then top U.S. spy, explained why the security
elite would have to reject an offer from the Iranian government
(under Khatami) to reopen the U.S. embassy and normalize diplomatic
relations. “In the last decades, Vietnam, Cuba and Iran have
humiliated the United States,” he explained to the diplomat — a
friend of mine — who delivered the message from the Iranian
government. “I suppose we’ve gotten even with the Vietnamese [4
million killed and 20 plus years of sanctions], but there’s no way
we’re having relations with Iran or Cuba before they get what’s
coming to them.” Since the elite will not wage war on Cuba —
Cubans will fight back — they used the Cuban Five as surrogate
punishment objects.
In
the 1990s, these Cuban nationals infiltrated Florida-based
anti-Castro terrorist groups and reported on the terrorists’
activities to Havana. In 1998, an FBI delegation traveled to Cuba.
Cuban officials gave the FBI some 1,200 pages of material, along with
video and audio tapes that incriminated groups and individuals —
their names, weapons they carried or stored and other details that
the Justice Department could use to prosecute the terrorists.
The
FBI told their Cuban counterparts they would respond in a month. The
Cubans are still waiting, but the FBI did use the material. They
arrested the Cuban Five. The Justice Department then charged them
with felonies.
Irony
accompanied injustice. The five admitted they entered the United
States to access U.S.-based groups plotting terrorism against Cuba.
In fact, U.S. law actually allows people to commit crimes out of a
greater necessity, one that would prevent greater harm.
“It
is a form of self-defense, extended to acts which will protect other
parties,” argued Leonard Weinglass, attorney for Antonio Guerrero,
one of the Five. Indeed, the Five’s lawyers presented this argument
to trial judge Joan Lenard, but she refused to let the jury consider
it.
Weinglass
and the other attorneys argued their appeals this month claiming the
judge had erred by not submitting the “‘defense of necessity’
claim to the jury, because the Five came to the United States to
prevent additional violence, injury and harm to others.”
The
U.S. government knew all about the terrorist “accomplishments” of
Luis Posada Carriles and Orlando Bosch, for examples. Both had
boasted to reporters about their roles in terrorist acts, including
the 1976 bombing of a Cuban commercial airliner — they did this
jointly — in which 73 passengers and crew members perished. In 1998,
Posada bragged about sabotaging Cuban tourist sites the previous
year. In one bombing carried out by his paid agent, an Italian
tourist died.
“We
didn’t want to hurt anybody,” he told reporters Larry Rohter and
Anne Bradach. “We just wanted to make a big scandal so that the
tourists don’t come anymore. We don’t want any more foreign
investment.” Posada said he wanted potential tourists to think Cuba
was unstable “and to encourage internal opposition.”
Posada
succeeded. Less tourists came to Cuba after the Italian died in the
bombing. The Times
reporters write that Posada “declared that he had a clear
conscience, saying, ‘I sleep like a baby.’” Then he said: “That
Italian was sitting in the wrong place at the wrong time.” (NY
Times
July 13, 1998)
The
Five came here precisely to stop such activities,
says
Weinglass. “The Five’s activities were justified and necessary in
order to save lives.” Weinglass had used this very argument to
defend Amy Carter, when the President’s daughter “occupied a
building, with other students, at the University of Massachusetts, in
opposition to the CIA agents who came to the campus to recruit
students into the CIA. She acknowledged that her occupation of the
building was a crime but she argued that that was justified by the
doctrine of necessity because the CIA was then engaged in an illegal
war in Nicaragua.” The jury acquitted Amy and the other defendants.
Weinglass
made a similar argument before a two-judge appeals court. In August
2005, this court initially heard the case and decided that the Five
had not received a fair trial. The entire 12 judge panel of the 11th
circuit reversed that decision despite massive evidence to show the
Miami jurors had felt intimidated. From the window of the
deliberation room they saw people taking photos of their license
plates. Jurors had reason to fear serious retribution should they
vote to acquit the Five.
The
lawyers also appealed the conviction of Gerardo Hernandez for
“conspiring” to commit murder. This charge arose from the
February 1996 shoot-down by Cuban MIGs of two Brothers to the rescue
planes that had violated Cuban airspace and were repeatedly warned of
“grave consequences” should they enter Cuban territory without
permission. At the trial, the Assistant U.S. Attorney acknowledged
that he had no solid evidence to back up this charge.
Weinglass
noted that the Gerardo conviction marked “the first time in history
that an individual is being held liable for the action of a sovereign
state in defending its airspace.” Indeed, Cuba had every reason and
the right to maintain sovereignty over its air space. The prosecutor
made outrageous claims to the jury without citing evidence and the
judge let him. He argued without facts that Cuba had sent the men to
attack the United States. For the first time in legal U.S. history,
the U.S. Attorney’s office prosecuted a case without even referring
to a single classified document.
The
Five stole no secrets; unlike FBI Special Agent Robert Hansen, or the
CIA’s Aldrich Ames who passed tens of thousands of “top secrets”
to the Soviet enemy, but two of them like the real spies, got life
imprisonment.
Was
U.S. justice fairer when a lawyer could bribe a cop in a meaningless
case and rich guys could buy their way out of murder raps — as they
still do? Not if one recalls the “national security” framing of
Sacco and Vanzetti in the 1920s and the 1953 execution of Julius and
Ethel Rosenberg, even though FBI Chief J. Edgar Hoover and President
Dwight Eisenhower both knew they had not passed atomic secrets to the
Soviets. The government had invoked “national security” under
which no justice occurs, not even in the halls.
Saul
Landau is an Institute for Policy Studies fellow. His new book is A
BUSH AND BOTOX WORLD.
